[Federal Register Volume 70, Number 70 (Wednesday, April 13, 2005)]
[Rules and Regulations]
[Pages 19273-19278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7407]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7899-3]
RIN 2060-AM51
Protection of Stratospheric Ozone: Substitute Refrigerant
Recycling; Amendment to the Definition of Refrigerant
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating this
direct final rule to correct the final rule published in the Federal
Register on March 12, 2004. Specifically, EPA is amending the
regulatory text for the definitions of refrigerant and technician. EPA
is also amending the prohibition against venting substitute
refrigerants to reflect the changes in the definitions. These changes
are being finalized to make certain that the regulations promulgated on
March 12, 2004 cannot be construed as a restriction on the sales of
substitutes that do not consist of an ozone-depleting substance (ODS),
such as pure hydrofluorocarbon (HFC) and perfluorocarbon (PFC)
substitutes.
DATES: This direct rule is effective on June 13, 2005, without further
notice, unless EPA receives adverse comment by May 13, 2005. If EPA
receives adverse comment, the Agency will publish a timely withdrawal
in the Federal Register informing the public that this rule will not
take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0070 by one of the following methods:
Federal eRulemaking portal http://www.regulations.gov.
Follow the on-line instructions for submitting comments;
Agency Web site: http://www.epa.gov/edocket. EDOCKET,
EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments;
Fax comments to (202) 566-1741; or
Mail/hand delivery: Submit comments to Air and Radiation
Docket at EPA West, 1301 Constitution Avenue, NW., Room B108, Mail Code
6102T, Washington, DC 20460, phone: (202) 566-1742.
Instructions: Direct your comments to Docket ID No. OAR-2004-0070.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available on-line at
http://www.epa.gov/edocket, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through EDOCKET,
regulations.gov, or e-mail. The EPA EDOCKET and the Federal
regulations.gov Web sites are ``anonymous access'' systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit EDOCKET on-line or see the
Federal Register of May 31, 2002 (67 FR 38102).
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Air and Radiation Docket EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.
FOR FURTHER INFORMATION CONTACT: Julius Banks; (202) 343-9870;
Stratospheric Protection Division, Office of Atmospheric Programs,
Office of Air and Radiation (6205J); 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. The Stratospheric Ozone Information Hotline, 800-
296-1996, and the Ozone Web page, http://www.epa.gov/ozone/title6/608/regulations/index.html, can also be contacted for further information
concerning this correction.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because we view this as a noncontroversial amendment and
anticipate no adverse comment. EPA
[[Page 19274]]
emphasizes that it is not re-proposing the June 11, 1998, proposal (63
FR 32044) to restrict the sale of hydrofluorocarbon (HFC) and
perfluorocarbon (PFC) substitutes, but is only taking action to correct
the definitions of refrigerant and technician at Sec. 82.152 and amend
the venting prohibition at Sec. 82.154(a) to make certain that the
definitions and prohibition are consistent with the expressed intent of
the March 12, 2004 (69 FR 11946) final rule to not restrict the sales
of such substitutes. EPA discussed and responded to comments concerning
the sales restrictions on substitutes for refrigerants, and its
extension to substitutes for refrigerants that consist in part or whole
of a class I or class II ozone-depleting substance in the March 12,
2004, final rulemaking (69 FR 11969).
In the ``Proposed Rules'' section of today's Federal Register
publication, EPA is publishing a separate document that will serve as
the proposal to amend the definitions of refrigerant and technician and
prohibit the knowing venting of HFC and PFC substitutes. This direct
final rule will become effective on June 13, 2005, without further
notice unless we receive adverse comment regarding the intent of the
amended definitions by May 13, 2005. If EPA receives adverse comment on
the intent of the corrected definitions and the amended prohibition, we
will publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. EPA will address all public
comments on the proposed rule in a subsequent final rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
Table of Contents
I. Regulated Entities
II. Overview
III. Today's Action
A. Correction to the Definition of Refrigerant
B. Amendment to the Prohibition Against Venting Substitutes
C. Correction to the Definition of Technician
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. The Congressional Review Act
I. Regulated Entities
Entities potentially regulated by this action include those that
manufacture, own, maintain, service, repair, or dispose of all types of
air-conditioning and refrigeration equipment (i.e., appliances as
defined by Sec. 82.152); those who sell, purchase, or reclaim
refrigerants and their substitutes; and those who own refrigerant
recycling or recovery equipment. This listing is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be regulated by this action. To determine whether your
company is regulated by this action, you should carefully examine the
applicability criteria contained in section 608 of the Clean Air Act
Amendments of 1990 (the Act). The applicability criteria are discussed
below and in regulations published on December 30, 1993 (58 FR 69638).
If you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Overview
On March 12, 2004 (69 FR 11946), EPA amended the rule on
refrigerant recycling, promulgated under section 608 of the Act, to
clarify how the requirements of section 608 apply to substitutes for
chlorofluorocarbon (CFC) and hydrochlorofluorocarbon (HCFC)
refrigerants. This rule explicated the self-effectuating statutory
prohibition against the knowing venting of substitutes to the
atmosphere during the maintenance, service, repair, and disposal of
appliances that became effective on November 15, 1995. The rule also
exempted certain substitutes from the venting prohibition on the basis
of current evidence that their release is adequately addressed by other
authorities; hence, such release does not pose a threat to the
environment under section 608 (69 FR 11949).
EPA also amended the refrigerant recovery and recycling
requirements for CFC and HCFC refrigerants to accommodate the
proliferation of new substitutes for these refrigerants on the market,
and to clarify that the venting prohibition applies to all substitutes
and refrigerants for which EPA has not made a determination that their
release ``does not pose a threat to the environment,'' including HFC
and PFC substitutes. The March 12, 2004 final rule was not intended to
either mandate section 608 technician certification for those
maintaining, repairing, or servicing appliances using substitutes that
do not consist of a class I or class II ODS or to restrict the sale of
substitutes that do not contribute to the depletion of the
stratospheric ozone layer, such as pure HFC and PFC substitutes (69 FR
11946).
III. Today's Action
With this action, EPA is correcting the definitions of refrigerant
and technician at Sec. 82.152 and amending the prohibition against the
knowing venting of substitutes at Sec. 82.154(a). These amendments are
being made to reflect the intent of the March 12, 2004 final rule to
not regulate the sale of substitutes that do not consist of a class I
or class II ozone-depleting substance.
A. Correction to the Definition of Refrigerant
While the intent of the March 12, 2004 final rule was not to
restrict the sale of refrigerant substitutes that do not contribute to
the depletion of the stratospheric ozone layer (69 FR 11946), the
accompanying regulatory text could be construed as having the opposite
effect. Specifically, the final rule's definition of refrigerant at
Sec. 82.152 (69 FR 11957) stated that, refrigerant means, for purposes
of this subpart, any substance consisting in part or whole of a class I
or class II ozone-depleting substance that is used for heat transfer
purposes and provides a cooling effect, or any substance used as a
substitute for such a class I or class II substance by any user in a
given end-use, except for the following substitutes in the following
end-uses:
(1) Ammonia in commercial or industrial process refrigeration or in
absorption units;
(2) Hydrocarbons in industrial process refrigeration (processing of
hydrocarbons);
(3) Chlorine in industrial process refrigeration (processing of
chlorine and chlorine compounds);
(4) Carbon dioxide in any application;
(5) Nitrogen in any application; or
(6) Water in any application.
EPA is aware that the above definition of refrigerant could be
construed as being at odds with the preamble that discusses the
Agency's intent to not restrict the sale of substitutes that do not
consist of a class I or class II ODS. The unintentional inclusion of
the phrase or any substance used as a substitute for such a class I or
class II substance * * *, implies that any substance, including pure
HFCs and PFCs, used as a substitute for such a class I or class II
[[Page 19275]]
substance would be captured under the definition of refrigerant. If
left uncorrected, this could create ambiguity about the interpretation
of the regulations promulgated at 40 CFR part 82, subpart F (i.e.,
section 608 regulations) and could have unintended implications on the
prohibitions, required practices, and reporting and recordkeeping
requirements of the regulations promulgated under section 608 of Title
VI of the Clean Air Act (e.g., mandatory certification of technicians
servicing appliances using pure HFC refrigerants and a restriction on
the sale of HFC substitutes to certified technicians).
Therefore, EPA is correcting the definition of refrigerant by
deleting the aforementioned phrase. The corrected definition at Sec.
82.152 reads: Refrigerant means, for purposes of this subpart, any
substance consisting in part or whole of a class I or class II ozone-
depleting substance that is used for heat transfer purposes and
provides a cooling effect. EPA has deleted the text specifying the
exempted substitutes (namely, ammonia in commercial or industrial
process refrigeration or in absorption units; hydrocarbons in
industrial process refrigeration (processing of hydrocarbons); chlorine
in industrial process refrigeration (processing of chlorine and
chlorine compounds); carbon dioxide in any application; nitrogen in any
application; or water in any application). Since these substances do
not contain a class I or class II ODS, such a level of specificity is
not required within the amended definition.
B. Amendment to the Prohibition Against Venting Substitutes
The correction to the definition of refrigerant requires an
amendment to the regulatory venting prohibition at Sec. 82.154(a). The
March 12, 2004 amendment to the section 608 regulatory venting
prohibition (69 FR 11979) states that, Effective May 11, 2004, no
person maintaining, servicing, repairing, or disposing of appliances
may knowingly vent or otherwise release into the environment any
refrigerant from such appliances. * * * If not addressed, the corrected
definition of refrigerant would exclude pure HFC and PFC substitutes
\1\ from the venting prohibition, because they do not consist in part
or whole of a class I or class II ozone-depleting substance. The
preamble to the March 12, 2004, final rule made clear that the Agency
intended to exempt certain substitutes, namely, ammonia in commercial
or industrial process refrigeration or in absorption units;
hydrocarbons in industrial process refrigeration (processing of
hydrocarbons); chlorine in industrial process refrigeration (processing
of chlorine and chlorine compounds); carbon dioxide in any application;
nitrogen in any application; or water in any application (69 FR 11949-
54) from the statutory venting prohibition, because their release is
adequately addressed by other entities; therefore, their release does
not pose a threat to the environment under section 608 of Title VI of
the Clean Air Act. However, EPA did not make such a finding for
substitutes consisting in part or whole of an HFC or PFC substitute. So
it remains illegal to knowingly vent substitutes consisting in part or
whole of an HFC or PFC substitute during the maintenance, service,
repair, or disposal of appliances (69 FR 11947).
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\1\ As defined at Sec. 82.152, Substitute means any chemical or
product, whether existing or new, that is used by any person as an
EPA approved replacement for a class I or II ozone-depleting
substance in a given refrigeration or air-conditioning end-use.
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In accordance with section 608(c)(2) of Title VI of the Clean Air
Act (as amended in 1990), de minimis releases associated with good
faith attempts to recapture and recycle or safely dispose of such
substitutes shall not be subject to the prohibition. EPA has not
promulgated regulations mandating certification of refrigerant
recycling/recovery equipment intended for use with substitutes;
therefore, EPA is not including a regulatory provision for the
mandatory use of certified recovery/recycling equipment as an option
for determining de minimis releases of substitutes. However, the lack
of a regulatory provision should not be interpreted as an exemption to
the venting prohibition for non-exempted substitutes. The regulatory
prohibition at Sec. 82.154(a) reflects the statutory reference to de
minimis releases of substitutes as they pertain to good faith attempts
to recapture and recycle or safely dispose of such substitutes.
In order to emphasize that the knowingly venting of HFC and PFC
substitutes remains illegal during the maintenance, service, repair,
and disposal of appliances and to make certain that the de minimis
exemption for refrigerants remains in the regulatory prohibition, Sec.
82.154(a) is amended to reflect the venting prohibition of section
608(c)(2) of the Act. Therefore, the amended definition of refrigerant
means that refrigerant releases shall be considered de minimis only if
they occur when: (1) The required practices set forth in Sec. 82.156
are observed, recovery or recycling machines that meet the requirements
set forth in Sec. 82.158 are used, and the technician certification
provisions set forth in Sec. 82.161 are observed; or (2) the
requirements set forth for the service of motor vehicle air-
conditioners (MVACs) in subpart B (i.e., section 609) of this part are
observed. EPA is also specifying, in the regulatory prohibition at
Sec. 82.154(a), the substitutes that have been exempted from the
statutory venting prohibition. EPA has made this edit in order to
clarify which substitutes are exempt from the venting prohibition.
Hence, EPA is amending the prohibition at Sec. 82.154(a) to read: (a)
Effective June 13, 2005, no person maintaining, servicing, repairing,
or disposing of appliances may knowingly vent or otherwise release into
the environment any refrigerant or substitute from such appliances,
with the exception of the following substitutes in the following end-
uses:
(1) Ammonia in commercial or industrial process refrigeration or in
absorption units;
(2) Hydrocarbons in industrial process refrigeration (processing of
hydrocarbons);
(3) Chlorine in industrial process refrigeration (processing of
chlorine and chlorine compounds);
(4) Carbon dioxide in any application;
(5) Nitrogen in any application; or
(6) Water in any application.
The knowing release of a refrigerant or non-exempt substitute
subsequent to its recovery from an appliance shall be considered a
violation of this prohibition. De minimis releases associated with good
faith attempts to recycle or recover refrigerants or non-exempt
substitutes are not subject to this prohibition. Refrigerant releases
shall be considered de minimis only if they occur when: (1) The
required practices set forth in Sec. 82.156 are observed, recovery or
recycling machines that meet the requirements set forth in Sec. 82.158
are used, and the technician certification provisions set forth in
Sec. 82.161 are observed; or (2) The requirements set forth in subpart
B of this part are observed.
C. Correction to the Definition of Technician
In 1994, EPA finalized the definition of technician at Sec. 82.152
to read: Technician means any person who performs maintenance, service,
or repair that could be reasonably expected to release class I or class
II refrigerants from appliances, except for MVACs, into the atmosphere.
* * * (59 FR 55912 (November 9, 1994)). On June 11, 1998 (63 FR 32089),
EPA proposed an amendment to the definition of technician to include
persons who perform maintenance, service, repair, or
[[Page 19276]]
disposal that could be reasonably expected to release class I
substances, class II substances, or substitutes from appliances into
the atmosphere (63 FR 32059). The intent of proposed amendment to the
definition was to require section 608 technician certification for
persons maintaining, repairing, servicing, or disposing of appliances
containing non-exempt substitutes; however, EPA did not intend to
remove the phrase except for MVACs from the definition of technician.
A petition for review challenging the March 12, 2004 final rule
stated that the amended definition of technician could be
misinterpreted to mean that technicians servicing and maintaining MVACs
must also have section 608 technician certification. In the course of
finalizing the March 12, 2004 rulemaking (69 FR 11979), EPA
inadvertently removed the text except for MVACs from the definition of
technician, at Sec. 82.152. Since EPA did not intend for the amended
definition of technician to include persons servicing or repairing
MVACs, the Agency is reverting to the original definition.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to the Office of Management and Budget (OMB)
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to Executive Order 12866 review.
B. Paperwork Reduction Act
OMB has previously approved the information collection requirements
contained in the existing regulations at 40 CFR part 82, subpart F
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB Control Number 2060-0256, EPA ICR number
1626.07. A copy of the OMB approved Information Collection Request
(ICR) may be obtained from Susan Auby, Collection Strategies Division;
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave.,
NW., Washington, DC 20460 or by calling (202) 566-1672. This action
does not impose any new information collection burden beyond the
already-approved ICR.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9.
C. Regulatory Flexibility Analysis
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this direct final rule. For
purposes of assessing the impacts of today's rule on small entities,
small entity is defined as: (1) A small business as defined by Small
Business Administration size standards primarily engaged in the supply
and sale of motor vehicle air-conditioning refrigerants as defined by
NAIC codes 42114, 42193, and 441310; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
EPA has determined that approximately 819 small entities will
experience an impact ranging from 0.001 percent to 0.163 percent, based
on their annual sales and revenues.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. EPA is
finalizing this rulemaking to make certain that the regulatory text in
the March 12, 2004 rulemaking (63 FR 11946) is consistent with the
intent to not regulate the use or sale of substitutes that do not
consist of a class I or class II ozone-depleting substance, while
making certain that the statutory prohibition against knowingly
releasing such substitutes remains. This rule corrects the definitions
of refrigerant and technician and makes certain that only substances
consisting whole or in part of a class I or class II ODS are covered
under the section 608 refrigerant regulations. Hence any burden
associated with technician certification or sales of refrigerant
substitutes not consisting of an ODS is removed.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative
[[Page 19277]]
was not adopted. Before EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government Agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. This rule supplements the statutory self-
effectuating prohibition against venting refrigerants by ensuring that
certain service practices are conducted that reduce emissions and
establish equipment and reclamation certification requirements. These
standards are amendments to the recycling standards under section 608
of the Clean Air Act. Many of these standards involve reporting
requirements and are not expected to be a high cost issue. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the UMRA.
For the reasons outlined above, EPA has also determined that this
rule contains no regulatory requirements that might significantly or
uniquely affect small governments. Thus, today's rule is not subject to
the requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August
10, 1999)), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This direct final rule does not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. The regulations
promulgated under today's action are done so under Title VI of the Act
which does not grant delegation rights to the States. Thus, Executive
Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249 (November 9, 2000)),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This direct final rule does
not have tribal implications, as specified in Executive Order 13175.
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments. Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order 13045: Protection of Children from Environmental
Health & Safety Risks (62 FR 19885 (April 23, 1997)) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This direct final rule is not subject to the Executive Order
because it does not concern an environmental health or safety risk that
EPA has reason to believe may have a disproportionate effect on
children. This rule amends the recycling standards for refrigerants to
protect the stratosphere from ozone depletion, which in turn protects
human health and the environment from increased amounts of UV
radiation.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rulemaking does not involve voluntary consensus standards.
J. The Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). It will become effective June 13, 2005.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Exports, Imports, Reporting and
recordkeeping requirements.
Dated: April 7, 2005.
Stephen L. Johnson,
Acting Administrator.
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Part 82, chapter I, title 40, of the Code of Federal Regulations, is
amended as follows:
[[Page 19278]]
PART 82--PROTECTION OF STRATOSPHERIC OZONE
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1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Subpart F--[Amended]
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2. Section 82.152 is amended by revising the definitions of
``refrigerant'' and ``technician'' to read as follows:
Sec. 82.152 Definitions.
* * * * *
Refrigerant means, for purposes of this subpart, any substance
consisting in part or whole of a class I or class II ozone-depleting
substance that is used for heat transfer purposes and provides a
cooling effect.
* * * * *
Technician means any person who performs maintenance, service, or
repair, that could be reasonably expected to release refrigerants from
appliances, except for MVACs, into the atmosphere. Technician also
means any person who performs disposal of appliances, except for small
appliances, MVACs, and MVAC-like appliances, that could be reasonably
expected to release refrigerants from the appliances into the
atmosphere. Performing maintenance, service, repair, or disposal could
be reasonably expected to release refrigerants only if the activity is
reasonably expected to violate the integrity of the refrigerant
circuit. Activities reasonably expected to violate the integrity of the
refrigerant circuit include activities such as attaching and detaching
hoses and gauges to and from the appliance to add or remove refrigerant
or to measure pressure and adding refrigerant to and removing
refrigerant from the appliance. Activities such as painting the
appliance, rewiring an external electrical circuit, replacing
insulation on a length of pipe, or tightening nuts and bolts on the
appliance are not reasonably expected to violate the integrity of the
refrigerant circuit. Performing maintenance, service, repair, or
disposal of appliances that have been evacuated pursuant to Sec.
82.156 could not be reasonably expected to release refrigerants from
the appliance unless the maintenance, service, or repair consists of
adding refrigerant to the appliance. Technician includes but is not
limited to installers, contractor employees, in-house service
personnel, and in some cases owners and/or operators.
* * * * *
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3. Section 82.154 is amended by revising paragraph (a) to read as
follows:
Sec. 82.154 Prohibitions.
(a)(1) Effective June 13, 2005, no person maintaining, servicing,
repairing, or disposing of appliances may knowingly vent or otherwise
release into the environment any refrigerant or substitute from such
appliances, with the exception of the following substitutes in the
following end-uses:
(i) Ammonia in commercial or industrial process refrigeration or in
absorption units;
(ii) Hydrocarbons in industrial process refrigeration (processing
of hydrocarbons);
(iii) Chlorine in industrial process refrigeration (processing of
chlorine and chlorine compounds);
(iv) Carbon dioxide in any application;
(v) Nitrogen in any application; or
(vi) Water in any application.
(2) The knowing release of a refrigerant or non-exempt substitute
subsequent to its recovery from an appliance shall be considered a
violation of this prohibition. De minimis releases associated with good
faith attempts to recycle or recover refrigerants or non-exempt
substitutes are not subject to this prohibition. Refrigerant releases
shall be considered de minimis only if they occur when:
(i) The required practices set forth in Sec. 82.156 are observed,
recovery or recycling machines that meet the requirements set forth in
Sec. 82.158 are used, and the technician certification provisions set
forth in Sec. 82.161 are observed; or
(ii) The requirements set forth in subpart B of this part are
observed.
* * * * *
[FR Doc. 05-7407 Filed 4-12-05; 8:45 am]
BILLING CODE 6560-50-P